Oiling the Wheels of Justice The Role of the Quaestor in Late Roman Law

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Oiling the Wheels of Justice

The Role of the Quaestor in Late Roman Law

Elliot Nolan SID: 310207959

A thesis submitted in partial fulfilment for the degree of Bachelor of Arts,

Honours in Ancient History

Word Count:

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Contents Contents ..................................................................................................................................... 2

List of abbreviations .................................................................................................................. 3

Acknowledgements .................................................................................................................... 4

Abstract ...................................................................................................................................... 5

Introduction ................................................................................................................................ 6

Chapter One: The Quaestor as Facilitator ................................................................................ 13

Eupraxius .............................................................................................................................. 17

Ausonius ............................................................................................................................... 22

Virius Nicomachus Flavianus .............................................................................................. 26

Chapter Two: The Quaestor as Mediator ................................................................................. 33

Intervention .......................................................................................................................... 33

Mediator ............................................................................... Error! Bookmark not defined.

Policing the Empire .............................................................................................................. 38

Conclusion ............................................................................................................................... 43

Primary Sources ....................................................................................................................... 46

Secondary Works ..................................................................................................................... 48

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List of abbreviations CTh Codex Theodosianus ed. Th. Mommsen (1905). Berlin; translated into English by C.

Pharr (1952). New York.

Dig. Digest of Justinian ed. C.H. Monro (1904). Cambridge; translated into English by C.H.

Monro (1904). Cambridge.

ILS Inscriptiones Latinae Selectae ed. H. Dessau (1962). Berlin.

Not. Dig. Notitia Dignitatum ed. Otto Seeck (1962). Frankfurt.

PLRE I Prosopography of the Later Roman Empire: A.D. 260-395, vol. 1 eds., A.H.M. Jones,

J.R. Martindale and J. Morris (1971). Cambridge.

PLRE II Prosopography of the Later Roman Empire: A.D. 395-527, vol. 2 eds., A.H.M.

Jones and J.R. Martindale (1980). Cambridge.

ZSS RA Zeitschrift der Savigny-Stiftungfür Rechtsgeschichte. Romanistiche Abteilung. Graz.

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Acknowledgements I would firstly like to thank my teacher and mentor from school, Dr. Alan Dearn, who first

inspired in me an interest in ancient history.

Secondly, to the Department of Classics and Ancient History at the University of

Sydney. When I first started at University, I had intended to do Honours in the slightly more

useful History, but the department's obvious passion for all things ancient inspired me to

pursue Honours in Ancient History instead. I do not regret it for one moment.

Thirdly, to my supervisor Dr. Richard Miles. Our meetings were few and short, and

often intimidating, but he always managed to point me in directions I had never considered

and provide the best advice when I needed it most. My interest in Late Antiquity stems from

his course I took in 2011. It remains the most fascinating period of Roman history for me.

Last but not least, to my dog Archie who, failing in health these last few months, has

doggedly refused to die. While he did not proofread any of this or offer any ideas, he has

emotionally supported me in the way that all the best animals do.

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Abstract This thesis endeavours to explain the role of the quaestor in Late Roman law. It looks past the

traditional focus on the contribution of the quaestor in the content and style of the law, and

instead, suggests that the quaestor was a combination of a facilitator of imperial law and a

mediator between emperor and bureaucracy. Chapter One uses the careers of quaestors in

order to position the quaestorship in Late Roman government, and using evidence from

Cassiodorus, suggests that there were only minor differences with the quaestorship of the

fourth and sixth centuries. It examines laws from the Codex Theodosianus in order to show

the difference between a law that works and a law that does not using the language as a

guide. It argues that the successful facilitation of law allowed the emperor to style himself in

a particular way but not all quaestors were able to do this all the time.

Chapter Two shows two aspects of the quaestor as a mediator between emperor and

bureaucracy. He was the emperor's 'confidant'. He not only gave legal advice but also had the

power to 'restrain' the emperor against acts that threatened his position with his subjects and

officials. The quaestor also acted as a 'policeman' against bureaucratic corruption and threats

to imperial power. This chapter argues that the quaestor was the conduit between autocratic

power a rising bureaucracy. The skilful quaestor attended to the needs of both without

disempowering either to any great extent and survived with his career intact.

Ultimately, this paper argues that the quaestor was more than a contributor to the law.

His style and use of language was the difference between good laws and bad laws. The

quaestor the emperor's 'confidant' and 'policeman' are also two important aspects that need

more attention from the scholarship.

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Introduction

In comparison to the many changes that took place in the fourth century AD, it is rarely

recognised that one of the more important developments was the evolution of the

quaestorship into an office that dealt with law. In some ways, it was similar to the quaestor

Augustus of the early Empire, the imperial spokesman who, in the emperor's absence, read his

words to the Senate.1 What little attention it has received in the scholarship focuses on a

legalistic framework for the quaestor that is based on his contribution to the style and content

of the law. For the better part of the 20th century, most scholars have dealt with it only

incidentally. In more recent years, both Jill Harries and Tony Honoré have written

extensively on the subject, as has to some extent John Matthews. The quaestor, according to

these scholars, was a lawyer-draftsman and was an uninfluential member of the consistory

(consistorium).2 These scholars dispute the extent to which the quaestor dictated the content

or style (or both) of the law. Honoré, in particular, sees there being three layers of text to each

constitution - which he terms Textstufen — and asserts that the quaestor made the greatest

contribution.3 Honoré regards the quaestor as being powerful as a modern speechwriter or

Parliamentary draftsperson in this regard.4 Harries, conversely, sees the quaestor as only one

of a large number of officials involved in the formulation of the text.5 The problem is that in

taking too narrow a focus on the role of the quaestor and his contribution to the formulation

of the Codes, the scholarship has overlooked, and sometimes even ignored evidence that

downplays the real importance of this role.

Rather than primarily just being a lawyer-draftsman as the scholarship has pigeonholed

him, the quaestor was a 'facilitator' of imperial power. The quaestor was, in theory, impartial;

his own views did not matter and while he did not contribute to the content, he was adept at

1 Jill Harries, Law and Empire in Late Antiquity (Cambridge: Cambridge University Press, 1999), p. 43.

2 John Matthews, Laying Down the Law: A Study of the Theodosian Code (New Haven & London: Yale University Press, 2000), p. 177; Jill Harries, 'The Roman Imperial Quaestor from Constantine to Theodosius II', The Journal of Roman Studies, Vol. 78 (1988), p. 150; Tony Honoré, Law in the Crisis of Empire 379-455 AD: The Theodosian Dynasty and its Quaestors (Oxford: Oxford University Press, 1998), p. 51.

3 Tony Honoré, 'The Making of the Theodosian Code', ZSS RA, Vol. 104 (1986), p. 144.

4 Honoré, 'The Making of the Theodosian Code', p. 137.

5 Harries, 'The Roman Imperial Quaestor from Constantine to Theodosius II', p. 150.

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stylising draft constitutions to maximise the full power and meaning of the law. For these

laws were not just words. They were representations of power but they were not necessarily

such in every instance. The quaestor was the difference between a law that worked and one

that did not. Through his knowledge and skill, the emperor could sometimes successfully

reinforce the conception of his omnipotence and omniscience, even though in reality he was

far from these. The quaestor was an integral part in communicating this concept, of which the

scholarship makes little reference.

The quaestor was also a 'mediator'. He was the buffer between autocratic and

bureaucratic power and he needed to be skilful in this because he so often worked in close

concert with the concerned parties, often the emperor. He was part of the bureaucracy but he

was not a 'bureaucrat'. Instead, he existed in a no-man's land between an autocratic emperor

who depended on his officials to run the empire and a bureaucracy that was in danger of

becoming so efficient it no longer needed the emperor.6 The quaestor was highly mobile and

carried out the emperor's affairs, whether foreign or domestic. The quaestor had the power to

intervene against the emperor's more 'arbitrary' acts and so became a moderator of public

opinion. Skill in rhetoric was just as important in persuading the emperor to change his

decision as it was in facilitating laws. The quaestor, therefore, was the 'confidant' of the

emperor and bridged the divide between an autocratic ruler and an emerging bureaucracy.

The quaestorship was a product of the fourth century and its development into this role

only occurred because of specific issues that characterise the government of this period. The

quaestor worked within the increasing paradoxes of late Roman power, between an autocratic

emperor and a bureaucracy that was in danger of becoming so efficient that it no longer

needed the emperor. The move away from primus inter pares and a single head of state were

chief among Diocletian's reforms in the late third century.7 The emperor had previously

governed by means of partnership with the upper classes. He was merely the first among

equals in the Senate and any powers awarded to him were given by acclamation of that same

body. The rhetoric was that the Republic never ended; it simply transitioned into a different

form. Over the course of the next three centuries, structural issues strained this form of 6 Christopher Kelly, Ruling the Later Roman Empire (United States of America: Harvard University Press, 2004), p. 5.

7 Alan K. Bowman, 'Diocletian and the First Tetrarchy, A.D. 284-305' in Alan K. Bowman, Averil Cameron and Peter Garnsey, eds., The Cambridge Ancient History: The Crisis of Empire, AD 193-337, Vol. 12 (Cambridge: Cambridge University Press, 2005), p. 74.

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government, alongside military and economic pressures that saw the collapse of stable

government for much of the third century.8 Diocletian's creation of a Tetrarchic system of

government resolved many of these issues.9 The emperors were not peers of the Senate. They

were autocratic figures who wielded unlimited and unchallenged power.10 The rhetoric of

centuries past that claimed otherwise was banished.

The language and construction of authority changed, too. In the early years of the

empire, it was convention that emperors wrote their own laws, speeches and letters.11 This

was impractical by the fourth century, although there is evidence that both Constantine and

Julian wrote some of their own laws.12 It was now more commonly a combined effort.13 The

Codes show a legal language that is more forceful. The threat of punishments of an

increasingly esoteric kind abounds and the emperor is seen as a figure that has the power to

enforce these laws.14 Not all laws were equal, however, and not all emperors constructed

authority in the same way. The quaestor played a fundamental role in the construction of

authority through the facilitation of law. He used rhetoric and his legal expertise to translate

the desires of emperors into workable laws that transmitted images of the emperor depending

on how he wished to be seen. It is often that we receive a different view of the emperor from

the Codes than in the literature but the skill of the quaestor was also important in whether the

image was persuasive, both to subjects and officials.

Yet enforcement of the emperor's decisions was sometimes problematic. Ulpian's third

century maxim succinctly describes the theory of his position: 'What the emperor has

8 Elio Lo Cascio, 'The New State of Diocletian and Constantine: From the Tetrarchy to the Reunification of the Empire' in Alan Bowman, Averil Cameron and Peter Garnsey, eds., The Cambridge Ancient History: The Crisis of Empire, AD 193-337, Vol. 12 (Cambridge: Cambridge University Press, 2005), p. 173.

9 Cascio, 'The New State of Diocletian and Constantine' , p. 172.

10 Christopher Kelly, 'Emperors, Government and Bureaucracy' in Averil Cameron and Peter Garnsey, eds., The Cambridge Ancient History: The Late Empire, AD337-425, Vol. 13 (Cambridge: Cambridge University Press, 1997), p. 139.

11 Harries, Law and Empire in Late Antiquity, p. 43.



14 John Noёl Dillon, The Justice of Constantine: Law, Communication and Control (Ann Arbor: The University of Michigan Press, 2012), p. 121.

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determined has the force of a statute',15 but the Codes provide us with scores of instances

where decrees had to be repeated because, as MacMullen rightly points out, nobody was

paying attention to them.16 Emperors, despite their image as omnipotent, omnipresent and

omniscient, could not be everywhere at once.17 The emperors were not alone, however. The

second of Diocletian's reforms was a reorganisation and expansion of the bureaucracy.18 In

the mid-third century, the empire was fundamentally governed by around 300 salaried senior

civil servants and approximately 10 000 slaves and freedmen.19 By the late fourth century,

the total size of the bureaucracy is estimated to be 35 000.20 It was permanent and

professionalised, represented by a sacred, imperial council known as the consistory

(consistorium) from the mid-fourth century onwards. The consistory served the same function

as the consilium principis of the early Empire that was used by emperors as a source of

advice and expertise and made up of an ad hoc body of generals and senators.21 The

difference is that the consistory comprised professional bureaucrats. Laws were framed,

written and enacted here. The emperor was the centre of a court characterised by ceremony.

He was even an explicitly divine figure, despite his penchant for Christianity.22

It was clear to all that the emperor had power over life and death. He could enact his

own laws if he liked (and occasionally did so) and spend tax money at his own pleasure while

millions lived in relative poverty. He decided when Rome went to war, and appointed not just

his generals but civil officials, too.23 He was, in short, an autocrat bred and developed over

long years. Over the course of the following century, emperors assumed this position to

different degrees. Julian the Apostate, for instance, is regarded to have embodied the earlier 15 Dig. 1.4.1.

16 Ramsay MacMullen, 'Roman Bureaucratese', Traditio, Vol. 18 (1962), p. 364.

17 Kelly, 'Emperors, Government and Bureaucracy', p. 157.

18 Bowman, 'Diocletian and the First Tetrarchy', pp. 181-82.

19 Rowland Smith, 'Measures of Difference: The Fourth-Century Transformation of the Roman Imperial Court', American Journal of Philology, Vol. 132 (2011), p. 136.

20 Smith, 'Measures of Difference', p. 136.

21 John Crook, Consilium Principis: Imperial Councils and Councillors from Augustus to Diocletian (Cambridge: Cambridge University Press, 1955), p. 102.



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spirit of primus inter pares,24 while Valentinian I is charged by his contemporaries to have

regularly flouted the rule of law and to have behaved as the worst of tyrants. Ammianus tells

us that from the late 360s into the early 370s Valentinian began executing citizens and

senators and officials.25 Hymetius, proconsul Africae, was suspected by Valentinian to have

engaged in trafficking, and was consequently fined.26 At the same time, the soothsayer

Amantius was betrayed on evidence of having been employed by Hymetius over an alleged

intent to commit criminal acts, as well as to perform a sacrifice.27 A search of his house led to

the discovery of the contents of a memorandum in Hymetius' handwriting that reproached

Valentinian's cruelty.28

This damning evidence led to Amantius’ execution while Hymetius was taken to the

town of Oriculum to await judgement.29 The former proconsul appealed to the emperor's

protection.30 The emperor deferred the matter to the Senate that suggested exile rather than

death, much to Valentinian's wrath.31 Even during the reign of Theodosius, the punishment

for 'maledictions' against the emperor was for the accused to be treated with 'contempt' and

sometimes 'pity'.32 The treatment of Hymetius was evidently considered unjust, and in

response the nobles sent an envoy to Valentinian, in order to ask that punishments should not

be too severe for such offences, and that no senator should ever be subjected to torture.33

Valentinian said he had never made such a decree, claiming slander. Eupraxius, his quaestor,

quietly corrected the emperor saying that he had in fact issued the decree. Ammianus refers

specifically to the quaestor's 'freedom' (libertas) to do so.34 This was not a 'contradiction'

24 Ammianus Marcellinus, 22.7.2.

25 Amm. Marc. 28.1.17.

26 Amm. Marc. 28.1.18.

27 Amm. Marc. 28.1.19.

28 Amm. Marc. 28.1.20.

29 Amm. Marc. 28.1.22.

30 Amm. Marc. 28.1.22.

31 Amm. Marc. 28.1.21-23.

32 CTh 9.4.1.

33 Amm. Marc. 28.1.24.

34 Amm. Marc. 28.1.25.

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based on opinion, rather it was fact. The quaestor was recognised to have a superior

knowledge of the law. The decree was rescinded but this was the problem of autocratic

power. If the emperor was not aware of laws issued in his name and, therefore, did not obey

them, the stability of government was at risk, either because of popular unrest or a revolt

leading to the replacement of the emperor. The quaestor and his 'libertas' to 'contradict' or

'correct' mitigated this risk.

We are challenged in that there remain only scattered sources for the fourth century

AD. The Codex Theodosianus gives us most of the law codes from Constantine to

Theodosius II. The Notitia Dignitatum is a fifth century administrative document detailing

the imperial bureaux. Besides the often imprecise ecclesiastical histories of men such as

Sozomen and Socrates, we retain Ammianus Marcellinus as our best contemporary source for

the quaestorship. Over 16 chapters, Ammianus offers us examples of the quaestor acting as

an adviser to emperors; a mediator between bureaucracy and emperor; and instances where

the quaestor intervenes in domestic affairs. But we also have Cassiodorus who, although he is

from the sixth century AD, is fairly important as Ammianus in providing us with information

about the function of the quaestorship in his Variae.

Cassiodorus is often ignored by scholars because he is far removed from the action of

the fourth century. He was, however, writing under King Theoderic who oversaw a

resurgence of Romanitas, civilitas and adherence to Roman law.35 The Variae were

composed by Cassiodorus in the name of Theoderic and his successors and they were the

official position of the government.36 This is supported to some extent by the Epistulae

Theodericianae Variae that reflect similar ideologies to those found in Cassiodorus.37 The

reign of Theoderic was about conserving the past with an emphasis on Roman administrative

functions. Ammianus often alludes to functions of the quaestorship that are explicitly

outlined in Cassiodorus, as this paper will show. There was, therefore, little difference

between the function of the quaestorship of the sixth century from that of the fourth century.

35 Jonathan J. Arnold, Theoderic and the Roman Imperial Restoration (Cambridge: Cambridge University Press, 2014), p. 76.

36 Arnold, Theoderic and the Roman Imperial Restoration, p. 46.


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This paper is divided into two chapters: firstly, the quaestor as a 'facilitator' of imperial

law. The Codex Theodosianus is our main source and it is our intention to closely examine

the language and style of the law codes of three quaestors under different emperors in order

to show the difference between a 'good' law and a 'bad' law. Secondly, the quaestor as a

'mediator'; as a 'restraint' against the more arbitrary acts of an emperor; a mediator between

emperor and bureaucracy and the eyes and ears of the emperor in the provinces. It was

important for the quaestor when completing his work for the emperor, whether 'undermining'

the bureaucracy or keeping an eye on the activities of foreign and domestic powers, that he

always appeared a neutral party, personal sympathies aside. And that in doing so, he was

never fully undermining the bureaucracy in the way the emperor might have wanted, but

allowing them to continue to administer the empire, while giving back some semblance of

power and authority to the emperor. Although the focus of this paper is on the mid-to-late

fourth century quaestorship, it will also be argued throughout that Cassiodorus is a relevant

source for our period and that the quaestorship of the sixth century Ostrogothic Kingdom was

much the same as that of the fourth century Roman Empire.

Ultimately, this paper examines the role of the quaestor as both a 'facilitator' and a

'mediator' as two aspects which the scholarship has overlooked. It will show that the quaestor

translated the ideas of emperors into laws and that he also bridged the divide between

autocracy and bureaucracy.

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Chapter One: The Quaestor as Facilitator The quaestor was part of the consistory and grew to become one of the main office-holders

alongside the praefecti praetorio, the magister officiorum, and the comes rei privatae and the

comes sacrarum largitionum.38 39 There is little evidence from the fourth century that

explicitly outlines the role of the quaestor besides what we can gather from disparate strands

in Ammianus and the Codex Theodosianus. The fifth century Notitia Dignitatum, which is

relevant for our period, notes that the quaestor's duties were 'dictating laws' (leges dictandae)

and 'petitions' (preces),40 which accords with the view of the scholarship.41 Despite this, we

are fortunate that Cassiodorus offers us a formula for the requirements of appointment as

quaestor. According to Cassiodorus, the quaestorship was ideally 'linked' with the thoughts of

his master, and although the quaestor spoke his own words, the two men were so intimately

connected that the 'discourse' was assumed to come from the king.42 He was expected to be

eloquent and to correct not only the morals of others but his own as well.43 He was a 'store-

room of the laws', 44 and just as the senate sought his legal knowledge, he was also the

'mouth-piece' of the emperor.45 While Procopius wrote under the Eastern Empire, the Secret

History contains some passages regarding the role of the quaestor. A high standard of 'general

experience' as well as legal skill was necessary and the quaestor must be incapable of

accepting bribes.46 Cassiodorus is possibly self-aggrandising his position as intimately linked

38 There is some contention as to the correct title of the quaestor. The quaestor is recorded as the quaestor intra Palatium in an inscription from AD394 (ILS 2947), but the subject of that inscription, Nicomachus Flavianus, is also recorded in a much later inscription from AD431 as quaestor aulae divi Theodosi (ILS 2948). The more or less contemporary Notitia Dignitatum notes the quaestor as viri illustris quaestoris (Or. XII).

39 The earliest reference to the quaestorship in any of the literature is from Ammianus Marcellinus who dates it to AD354, during the reign of Constantius II (14.17.11). The earliest epigraphic evidence, however, is from an inscription dated one year earlier (ILS 1243).

40 Not. Dig. Or. XII.


42 Cassiodorus, Variae 6.5.2.

43 Cass., Variae 6.5.3.

44 Cass., Variae 6.5.3.

45 Cass. Variae 6.5.6.

46 Procopius, Secret History 5.19.

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to Theoderic, but the role of the quaestor is reasserted in a speech given by Theoderic to the

Senate in AD524 which largely follows the same line.47 These were, after all, the official

documents of Theoderic's government.48 It follows, then, that there are obvious similarities

between the quaestorships of the two periods. Knowledge of the law and eloquence were

required in both periods. The quaestor as a 'mouth-piece' of the emperor accords with the role

of the quaestor Augustus in the early Empire. The quaestor in the fourth century was either

the 'mouth-piece' through the facilitation of law, or and as this paper will later show, the

'mouth-piece' when he represented the emperor in the provinces.

Although Cassiodorus (and to some extent, Procopius) offers us this valuable evidence,

no source survives that tells us exactly how the quaestor was appointed to his role. A cursory

examination of some of our list of known quaestors offers little light on the question.

Ausonius, for instance, was a poet and tutor to the emperor Gratian. He was not a member of

either senate nor had he held any bureaucratic office. The poet writes in a letter to his

grandson of the same name that when Gratian became of age, 'I was created Quaestor'.49 This

occurred in AD375-76. He was afterwards in AD378-79 praefectus praetorio Galliarum,

Italiae et Africae, and consul in AD379.50 Maternus Cynegius went first from being comes

sacrarum largitionum to the quaestorship by appointment of Theodosius I.51 He was

afterwards praefectus praetorio Orientis, a considerable appointment.52 Lastly, Virius

Nicomachus Flavianus was an eminent member of the Roman Senate and in the late 380s was

made quaestor, again by Theodosius I.53 He was also praefectus praetorio Italiae et Africae

in AD390-92 and sole consul for AD394.54 Thus there are two patterns here in that all three

were specially appointed by the emperor but there is no commonality in their backgrounds,

only that at least two (Nicomachus and Ausonius) were of advanced age at the time, while the

47 Cass. Variae 5.4.


49 Ausonius, Ep. 22.90.

50 PLRE I, Ausonius 7.

51 CTh 12.1.97.

52 PLRE I, Cynegius 3.

53 Honoré, Law in the Crisis of Empire 379-455 AD, p. 59.

54 PLRE I, Flavianus 15.

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age of the third is unknown. Given he died in AD388, we might infer the same. All three,

however, saw immediate advancement to a praefectura praetorio of some kind, so the

quaestorship was a stepping-stone towards better things in this period.

By way of comparison, the sixth century Cassiodorus was a classically trained

rhetorician. He had family connections to Theoderic. His father, for whom Cassiodorus acted

as consiliarius, was praefectus praetorio to the king from AD503 to AD507.55 Cassiodorus

was made quaestor in AD507 when the king heard a speech he had made.56 He was only 22,

which in comparison to quaestors of the fourth century is very unusual. His appointment, too,

seems to have lasted longer than those in the fourth century. It ended in AD511, as opposed

to the one or two year length appointments for men such as Ausonius and Virius Nicomachus

Flavianus. His career afterwards follows a different pattern as well. He was consul and

magister officiorum and his culminating office was as praefectus praetorio Italiae.57

Clearly, rhetoric was still important. Procopius' suggestion that a high standard of

experience and legal skill mattered fails to accord with the evidence of the fourth century or

even the early sixth century in what we receive from Cassiodorus. Cassiodorus was learned in

the law but he cannot have had the high standard of experience in the law that Procopius'

words suggest. For the most part, appointments were made especially by the king or emperor,

and one's career up to that point, whether as a member of the Senate or bureaucracy or

neither, mattered little. The quaestorship, however, was the beginning of more important

appointments as the evidence shows. Skill in rhetoric is the dominating factor, but

professional legal skill is not, although knowledge of law was still part of the education of

every gentleman up to this point.58

Most emperors were laymen in their knowledge of the law, with some exceptions like

Galba and Macrinus.59 While the emperors of an earlier period were expected to write all

their own laws and speeches, secretariats (scrinia) had long since fulfilled this function by the 55 M. Shane Bjornlie, Politics and Tradition Between Rome, Ravenna and Constantinople (Cambridge: Cambridge University Press, 2013), p. 17.

56 Robin Macpherson, Rome in Involution: Cassiodorus' Variae in Their Literary and Historical Setting (Poznań: Wydawn. Nauk., 1989), p. 110.

57 PLRE II, Cassiodorus 4.


59 Tony Honoré, Emperors and Lawyers (Oxford: Clarendon Press, 1994), p. 3.

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time of Constantine.60 So while the emperor often had ideas, he equally often lacked the skill

or knowledge to make them into law. The quaestor was able to facilitate this process. He had

the knowledge of the law and the skill in rhetoric to translate ideas into something that

worked, although it did not always work in practice. For example, the following constitution

was evidently drafted by someone with legal training. It concerns the rules for the return of

betrothal gifts following the death of the wife: Emperors Valentinian, Valens, and Gratian Augustuses to Probus, Praetorian Prefect. Before marriage many things are delivered with all due formality under the title of betrothal gifts, and these gifts must not by any means contribute to loss on the part of the donor. But if the girl should die during the marriage, they shall revert to the advantage of the said donor... Therefore, the claim of the father and other near kinsmen of the girl shall be annulled, and such gifts shall be returned without delay to those persons who appear to have presented them before the marriage was contracted.61

This sort of technical language reflects a greater knowledge and expertise than the

constitutions of those who were clearly not lawyers. The use of verbs like 'redhiberi' are

normally associated with the return of a purchased item, not a betrothal gift. It is also a good

example of a law that does not work, largely in the sense that it was clearly inefficacious

because it had to be submitted three times, first in AD367, again in AD368 and lastly in

AD373 before being followed by a series of equally complex laws regarding the return of

such gifts if the wife or husband to be dies before the marriage.62The following constitution

shows an inverse of technical legalese: The same Augustuses [Gratian, Valentinian, and Theodosius] to Eutropius, Praetorian Prefect. All men who retire from Our court shall be considered exempt from the imposition of all compulsory public services. They shall not suffer the arrogance and rapacious avarice of any accountant on the pretext that they are experienced and suitable for service, nor after their discharge has been earned by service, when they are old and feeble or retired, shall they be recalled to their duties, and all consideration of the labor they have spent be obliterated.63


61 CTh 3.5.9: Multa ante nubtias sponsaliorum nomine pro sollemnitate traduntur, quae nequaquam in damnum debent dantis accrescere, sed mortua in matrimonio puella ad dantis commodum revocari... Patris igitur explosa persona propinquorumque his personis, quae ante coeptum matrimonium videntur optulisse, incunctanter ea redhiberi oportet.

62 CTh 3.5.10; 3.5.11; 3.5.12.

63 CTh 6.35.11: Ab omnibus ex aula nostra decedentes viri iniunctis habeantur inmunes; numerariorum fastus vel rapaces quaestus tamquam experientes et idonei non patiantur nec post emeritam missionem ad ministeria senes debiles seu vacantes oblitterata laboris exacti considerationes revocentur.

17

Evidently this constitution must only have been circulated among the court of the

emperor but it is a good example of the kinds of literary flourishes that mark a 'good' law

from a 'bad' one. The use of metaphorical, often exaggerative language distinguishes it, e.g.

'oblitterata'. It was not repeated, which suggests the message was either clearly

communicated or, because it is a minor law, it was quietly forgotten. Certainly, it seems not

to have been repeated, so the message was clearly communicated unlike the first constitution

shown. The author was probably from a literary background but beyond this we know

nothing.

But what of the quaestors for whom we have names and biographies? This is a small

list. Ausonius, Maternus Cynegius, and Virius Nicomachus Flavianus figure prominently. So

too does Eupraxius for whom Ammianus provides a more ample biography than he does of

many of the subjects in his work. The intention here is to examine three different quaestors

and a few of their laws. The laws selected are taken from Honoré who has extensively

researched, identified and paired certain quaestors with their respective laws. Honoré dates

laws either according to those given in the Prosopography of the Later Roman Empire or

those given in Seeck's Regesten.64 In this paper C. Pharr's English translation of the Codex

Theodosianus is used in the body and the Latin is given below in the footnotes from Th.

Mommsen's edition. Eupraxius, Ausonius and Virius Nicomachus Flavianus each represent

three emperors and three decades of quaestors serving in the capacity as the 'mouthpiece' of

the emperor. They each had different backgrounds, and their success in 'facilitating' the law

varied.

Eupraxius

Eupraxius was not a lawyer, rather he seems to have been a career civil servant.65 He was

magister memoriae in AD367, which meant he came into contact with the law on a frequent

basis. He was afterwards praefectus urbis Romae in AD374, after which his career stops.66

He drafted 78 laws between September AD367 and July AD370.67 It has been well noted that

Eupraxius is the first known quaestor to give advice on the law in AD368, but we can date his


65 Honoré, Law in the Crisis of Empire, p. 12.

66 PLRE I, Flavius I.


18

quaestorship to AD367. Ammianus relates that when Gratian was advanced as emperor,

Eupraxius, as magister memoriae, cried out 'The house of Gratianus is worthy of this'68

resulting in his immediate promotion to quaestor. Something similar occurred when

Cassiodorus was elevated to the quaestorship — the eloquence in a speech regarding

Theoderic being the persuasive factor, as opposed to Eupraxius' promotion which surely had

more to it than Ammianus tells us. Ammianus, in an aside, writes of the virtues of Eupraxius: He was a man who left many proofs of noble self-confidence worthy of imitation by sensible men, one who never deviated from the principles of a fearless nature, but was always firm and resembled the laws, which, as we know, in the manifold cases in court speak with one and the same voice; and he then remained truer to the side of justice which he had espoused, even when the emperor, becoming arbitrary, assailed him with threats when he gave him good advice.69

The emperor who became 'arbitrary' is not Gratian, but Valentinian I, under whom

Eupraxius served as quaestor. Eupraxius is unusual in that although Ammianus only

occasionally refers to other quaestors by name because they are incidental to the narrative,

Eupraxius is the only quaestor to receive such special attention. The image from the almost

panegyrical quality of the text suggests that Eupraxius was independent from any ideology

that Valentinian I held and was actually subservient to the law, rather than the emperor.

Indeed, this seems to be the case for most of the quaestors we do know about, like Ausonius

and Virius Nicomachus Flavianus who were both pagan at the time of their quaestorship with

the exception of Maternus Cynegius who exemplified the radical Christian.

Valentinian I is represented by the ancients to have flouted the rule of law when it

suited him. He was also said to have been brutal at times, and was often only restrained in

part by quick-thinking officials in the consistory, such as Eupraxius .70 Ammianus' text

explicitly says the relationship between emperor and quaestor broke down over time. Did this

affect the efficacy of laws drafted under Eupraxius? Quaestor and emperor did not need to

hold the same views. But emperor and quaestor were meant to be two cooperative parties,

and if one party was less amenable to the relationship, was the other less efficacious in their

role, whether they were active or passive in the facilitation of a law? More importantly, could

the quaestor actually know the will of the emperor? There is no particular common theme to

the laws drafted, but it is worth investigating three specific laws to answer further the 68 Amm. Marc. 27.6.14.

69 Amm. Marc. 27.6.14.

70 This is discussed in more detail in Chapter Two.

19

question as to whether Eupraxius succeeded in his role as a 'facilitator'. The first text is dated

October 8 AD367 on punishment for senators: Emperors Valentinian, Valens, and Gratian Augustuses to Praetextatus, Prefect of the City. As often as punishment of exceeding severity must be inflicted on a man of the Senatorial order, according to the nature of his crime, Our judgment must be especially sought, in order that, after having ascertained the tenor of the circumstances and of the records, We may be able to determine the general rule which the nature of the deed and consideration thereof dictate.71

The style of the text is neither in the technical legalese of some quaestors nor the purple

prose of others. It is rather a middle ground between the two and so the intention here is

clear: The emperor's judgement was needed to determine whether excessive punishment of a

senator was actually necessary. There is also, underlying this, a desire by Valentinian I to halt

the devolution of what must originally have been an imperial power to government officials

such as Praetextatus. The theory of primus inter pares had never been applicable to most of

the emperors, and it was cast out by Diocletian upon the inception of the Dominate, but the

text implicitly suggests a desire by Valentinian I to retain some sense of primus inter pares

— that a senator should be judged by his peers. In this case, one of the peers is the emperor.

There is even a suggestion that the emperor's judgement would not be absolute —

'statuere possimus' does not imply that the emperor wanted his 'peers' to think he was going

to make the decision on his own. It is unlikely this was out of any sense of goodwill or desire

to bring back the old regime, rather the emperor wanted to retain authority over a senate that

was bringing itself out of the obscurity of past centuries. It is couched in the sort of language

of an earlier period when primus inter pares was the foundational rhetoric of the relationship

between emperor and senate. Certainly, the rhetoric did not last long, as just a few years later

Valentinian I began to ruthlessly execute senators, officials, and citizens.72 It shows how

different language was used for different circumstances. CTh 9.40.10 is a good example of a

quaestor's ability to provide two layers of text, one above and one below, so it is, in short, a

law that works.

The second law is dated January 19 AD369 and regards imposter philosophers: The same Augustuses [Valentinian and Valens] to Probus, Praetorian Prefect.

71 CTh 9.40.10: Quotiens in senatori ordinis viros, pro quantitate peccati austerior fuerit ultio proferenda, Nostra potissimum explorentur arbitria; quo, rerum adque gestorum tenore comperto, eam formam statuere possimus, quam modus facti contemplatioque dictauerit

72 Amm. Marc. 28.1.14-23.

20

Every man shall be returned to his municipality if he is recognized as having unduly and insolently usurped the garb of philosophers, except those persons who have been endorsed by the most approved persons and thus ought to be separated from this filthy crowd. For it is disgraceful that a man who professes to endure the violence of fortune cannot bear to perform the compulsory public duties of his municipality.73

The law is intended to forcibly return to their municipalities those men who pretend to

be philosophers in order to escape compulsory public duties. The exception here is those men

who are endorsed as philosophers. The style of this text is slightly different from CTh

9.40.10. It is fervent, and greatly more heated in its choice of language in parts. Two

constructions stand out particularly: 'insolenter usurpare'; 'fortunae vim'. Valentinian, we are

told by Ammianus, was easily carried away by fits of passion, not Eupraxius, who was

regarded to have always held his composure in the interests of justice. We might leap at the

chance to suggest this means the law was composed by someone other than Eupraxius,

perhaps the magister memoriae, for whom the drafting of at least one law is recorded.74 It

actually suggests that Eupraxius was adept at matching the tone of the emperor when

necessary.

This was the skill of a good facilitator who could determine in conversation with the

emperor not only his intention but also his feelings about the subject. In this case, the

emperor was appalled that men were neglecting their public duties in pursuit of relative

idleness, presumably to the detriment of the state, at a time when Shapur II, King of Persia,

began once more to pose a threat to Rome.75 Much like CTh 9.40.10, this law professes that

cases will be judged individually in the pursuit of fairness, as presumably it would be as

unjust to ban all philosophers as it would be to harshly punish all senators without

investigation of the evidence. Both laws contain the same qualifications and are not phrased

in absolute terms and require decisions made according to certain objective criteria. CTh

13.3.7 provokes the image of an emperor who stands for justice and desires the prosperity of

the towns of his empire. He does not condone unnecessary violence (there is no call for

execution or physical punishment here). It is, if we are to believe Ammianus, a false portrait

73 CTh 13.3.7: Reddatur unusquisque patriae suae, qui habitum philosophiae indebite et insolenter usurpare cognoscitur, exceptis his, qui a probatissimis, adprobati ab hac debent conluvione secerni. Turpe enim est, ut patriae functiones ferre non possit, qui etiam fortunae vim se ferre profitetur.

74 Rufinus records that Benivolus, the magister memoriae, refused to draft the imperial decrees of Valentinian II because of their pro-Arian content (11.16).

75 Amm. Marc. 27.12.18.

21

of Valentinian, but we are not concerned with that historian's view for the moment, rather the

representation we are given in this constitution. Much like the previous law, this is a skilful

example of the quaestor as facilitator, as Eupraxius managed to not only help Valentinian

translate his ideas into a workable law but reinforced this image of a just and fair emperor

through the inclusion of such qualifications and nuances in the text.

This last law, given on March 19 AD370 regards the punishment of those who

appropriate 'step bread': The same Augustuses [Valentinian and Valens] to Maximus, Prefect of the Annona. If any overseer, procurator, or slave of a Senator should ever obtain step bread by usurpation... he shall be subject to the punishment of the torture horse. If it should appear that any such offender by his own rash lawlessness and without the knowledge of his master had made an illicit agreement as to his receipt of bread, he shall be placed in chains and shall himself serve the breadmaking establishment... Also if any person should be exceedingly poor in resources, he shall be compelled to perform such laborious work as a slave. But the sword, as an avenger of the law, shall be employed against the scribes who are proved to have perpetrated this forbidden crime.76

The law thus regards various ways of punishing specific offenders for specific crimes in

taking bread. At first glance, the punishments described seem unusually harsh. Yet

increasingly savage ways of punishing criminal offenders were commonplace in the fourth

century. Constantine, for instance, broke new ground in producing laws for which the

sanction was invariably death.77 These tended to be aimed at specific problems, rather than

broad categories of crime, however, and he was remembered as 'unusually merciful and

kind'.78 By the time of Valentinian, public execution and punishment were the norm, rather

than the exception, and finding more brutal ways to mutilate criminals, such as the use of the

'eculei' — which is memorably translated as 'torture horse' — was common and specific to

the fourth century onwards.79 We should not, therefore, regard this law as an example of the

'unusual' brutality of Valentinian in contrast to other emperors. Ammianus' view aside, he

76 CTh 14.17.6: Si quis unquam actor, procurator, servus senatoris usurpatum gradilem... subiiciatur eculei. Ac si eundem patuerit temeritate propria adque ignorante domino de perceptione panis inlicite transegisse, ipse sub vinculis pistrino... Si quis etiam pauperrimus rerum erit, cogetur exhibere operarium feruitutem. In scribas vero, quos constiterit nefas vetitum perpetrasse, vindex legum gladius exeratur.

77 Ramsay MacMullen, 'Judicial Savagery in the Roman Empire', Chiron, Vol. 16 (1986), p. 157.

78 MacMullen, 'Judicial Savagery in the Roman Empire', pp. 157-58.

79 MacMullen, 'Judicial Savagery in the Roman Empire', p. 158.

22

was not any more violent in this regard than his predecessors or successors. Even Gratian

often resorted to mutilation.80

Eupraxius is unique, firstly in the sense that he is our first known quaestor to give

advice on the law and to act as a lawyer-draftsman, but also because he invariably succeeds

in facilitating the ideas of Valentinian into workable laws, and represents the emperor as fair

and just, contrary to the historical record of Ammianus Marcellinus. These three laws show

Eupraxius at his best. He composed numerous others, which partly for reason that they often

lacked interesting content are not our concern. His lack of legal training does not hold him

back from his role as a facilitator and all three laws concern punishment of one kind or

another. Although our immediate thought might be that they justly show the brutality and

malice of Valentinian, a closer examination suggests otherwise. They all contain

qualifications. Valentinian is not blindly punishing offenders. There is a proper judicial

process in place. For example, CTh 9.40.10 shows the emperor's desire to investigate the

circumstances and propose his judgement, but only a proposal, no more. There is a strong

implication that the emperor was willing to defer to the judgement of the senate. CTh 13.3.7,

too, has only the mildest of punishments, which excepts those philosophers who have been

approved, while CTh 14.17.6 has a different category of punishment dependent on who it was

committed the crime, but we are constantly reminded of the burden of proof needed. This is

not the image of an emperor who was savage and out of control. His punishments were, after

all, no more brutal than that of others. It was simply characteristic of the period, and violence

in Rome was commonplace. Rather, Valentinian is suggested to be an emperor who was

ready to exact punishment against those who threatened the stability of the state, but only

when it was undoubtedly proven.

Ausonius

Ausonius was a poet, teacher of rhetoric, and tutor to the young emperor Gratian. He was

made quaestor by Valentinian in about AD375 and continued in this office until late

AD377.81 His quaestorship oversaw the drafting of 31 laws, by Honoré's count.82 Four of

those were actually drafted under Valentinian and the remainder under Gratian. It is 80 MacMullen, 'Judicial Savagery in the Roman Empire', p. 158.



23

unfortunate that here we lack Ammianus' narrative whose history ends with the death of

Valentinian. While Ausonius does not figure into the history at all, Gratian does. He was seen

by Ammianus as having a 'noble nature' that was comparable with the 'choicest rulers of the

olden time'.83 Gratian is well known for his piety and interest in religious matters.84 Despite

this, and perhaps in response to the moderation of his predecessors, Gratian had no

underlying initiative in religious policy.85 Thus there is no real theme to the following laws.

Our first law, drafted on January 1 AD376 regards the construction of new buildings in

Rome: Emperors Valens, Gratian, and Valentinian Augustuses to the Senate. No one of the prefects of the City or other judges whom power has placed in a high position shall undertake any new structure in the renowned City of Rome, but he shall direct his attention to improving the old. If any person should wish to undertake any new building in the City, he must complete it with his own money and labor, without bringing together old buildings, without digging up the foundations of noble buildings, without obtaining renovated stones from the public, without tearing away pieces of marble by the mutilation of the despoiled buildings.86

This law comes from a large section within the CTh devoted to 'Public Works'. The

construction of new buildings in Rome was hardly a recent occurrence. Consuls of the

Republic and emperors of the imperial age often built new theatres and aqueducts to boost

their popularity with the common people. Ammianus's recount of Constantius II's adventus

bears witness to the manifold munificence of Rome's past benefactors.87 Doubtless the same

thing was going on here, but governors were taking money from a dwindling public treasury

to do so, while the buildings of ages past crumbled about them. It was evidently a problem.

Lampadius, praefectus urbis Romae, is lambasted by Ammianus for his habit of frequently

erecting new buildings (and occasionally restoring old ones) and seizing materials without

83 Amm. Marc. 27.6.15.

84 Rufinus, 11.13.

85 R. Malcolm Errington, Roman Imperial Policy from Julian to Theodosius (Chapel Hill: The University of North Carolina Press, 2006), p. 193.

86 CTh 15.1.19: Nemo praefectorum urbis, aliorumque iudicum, quos potestas in excelso locat, opus aliquod nouum in Urbe Roma inclyta moliatur, sed excolendis veteribus intendat animum. Nouum quoque opus qui volet in Urbe moliri sua pecunia, suis operibus absoluat, non contractis veteribus emolumentis, non effossis nobilium operum substructionibus, non rediuiuis de publico faxis, non marmorum frustis spoliatarum aedium reformatione conuulsis.

87 Amm. Marc. 16.10.13-17.

24

payment to the wrath of the poor.88 The style of this law contains a large amount of

repetition. Note the heavy use of 'non' towards the end. It is intended to ensure that there is

only one interpretation to the law. The emphasis is on the restoration of older buildings but it

also contains caveats to that effect; that any person cannot harm or despoil old buildings in

pursuit of building a new one. The inclusion of the possible scenarios where this might occur

ensures that any loophole or potential for misunderstanding is closed. The point of this law is

plain and without ambiguity. It is a good example of the quaestor as facilitator making a law

comprehensible to its intended audience.

The next law from March 15 AD376 concerns the treatment of slaves who dare accuse

their masters of a crime: The same Augustuses [Valens, Gratian, and Valentinian] to Maximus, Praetorian Prefect. When slaves, as accusers, thunder forth against their masters, no one shall await the outcome of a trial. It is Our pleasure that no inquiry shall be made, no investigation shall be held, but the authors of the nefarious accusations shall be burned, together with the formal statements of the accusations and all the instruments of written documents and of the premeditated criminal charge. We except charges of the crime of attempted high treason, however, betrayal of which is honourable even for slaves, for this crime is directed against the Emperors.89

Ausonius' particular use of sentence constructions like 'nefandarum accusationum'

suggests the hatred with which the targeted group was regarded. The fervent language in this

law was clearly meant to inspire fear. It was shown earlier that punishments of an

increasingly esoteric kind were common in the fourth century. The point of this law is not

merely to just silence the accuser, but to eliminate their accusation entirely, as though it had

never been made. The texts suffer the same punishment as their author with fire as the agent.

It shows a recognition of the power of the written word and fire as a means to take away that

power. It is in effect damnatio memoriae. This is a clever piece of rhetoric and one that well

demonstrates the quaestor as facilitator.

Finally, and due to the length of this constitution only an extract will be given, this law

from May 23 AD376 regards the payment of rhetoricians and grammarians:

88 Amm. Marc. 27.3.7-10.

89 CTh 9.6.2: Cum accusatores servi dominis intonent, nemo iudiciorum expectet euentum, nihil quaeri, nihil discuti placet, fet cum ipsis delationum libellis, cum omnis scribturarum et meditati criminis apparatu, nefandarum accusationum crementur auctores. Excepto tamen adpetitae maiestatis crimine, in quo etiam feruis honesta proditio est. Nam et hoc facinus tendit in Dominos.

25

Emperors Valens, Gratian, and Valentinian Augustuses to Antonius, Praetorian Prefect of Gaul. Throughout every diocese committed to Your Magnificence, in the most thickly populated municipalities, which are powerful and eminent by their renown, all the best preceptors — We mean rhetoricians and grammarians of the Attic and Roman learning — shall preside over teaching the youth... [here follows suggestions as to 'subsistence allowances'].90

CTh 13.3.11 follows a similar law granting exemption from military and public service

to physicians and teachers in Rome.91 The objective of this law is clear in one sense, as it

concerns the payment of rhetoricians and grammarians. Where it falters is in the constant

clarifications and corrections to the text, e.g. 'Rhetores loquimur et grammaticos Atticae

Romanaeque doctrinae'. Furthermore, the remainder of the text (not quoted above) is riddled

with conditional phrases, e.g. 'Si qui dignus repperiri potuerit'. It speaks of uncertainty unlike

the previous laws that were assertive. It also falls prey to getting bogged down in technical

language. The suggestions on 'subsistence allowances' take up most of the text before

clarifying that each municipality will actually have the freedom to choose the size of

subsistence allowances and not the emperor who had up to then given precise figures for each

category of grammarian and rhetorician. Ausonius must have had some self-interest in the

composition of this law, and presumably was able to give proper advice to Gratian in the

manner of the best facilitator, but in doing so the rhetoric is absent. Not all laws were meant

to be outstanding communication pieces. Many of them were purely administrative, and the

audience bureaucratic — this one included. But in comparison to the other laws made by

Ausonius, this falters in that it focuses too much on technicalities and conditions. Even in the

case of a law like this, style and rhetoric still matter because it fails to represent the emperor

as someone who is sure of himself. The intention is good, but in focusing too much on the

content, the style of the law has suffered.

Ausonius is one of the few quaestors to have had demonstrable training in rhetoric. It

comes through, for the most part, and even when, for example, the law on slaves seems

abhorrent, Ausonius (almost) persuades us to the rightness of the punishment. Like with any

law, language plays a great part. Ausonius was capable of seeking the middle ground and he

knew when to use more passionate language when the occasion suited. There are exceptions,

90 CTh 13.3.11: Per omnem dioecesim commisam magnificentiae tuae frequentissimis in civitatibus, quae pollent et eminent claritudine, praeceptorum optimi quique erudiendae praesideant iuventuti: rhetores loquimur et grammaticos Atticae Romanaeque doctrinae.

91 CTh 13.3.10.

26

as in CTh 13.3.11 where the self-interest of Ausonius occupied too much of his attention in

tending to details of payment for rhetoricians and grammarians. It is a good example where

the quaestor was biased and allowed his own interests to influence the law. This was at the

expense of the actual style that suffers greatly, and while the objective of the law is blatant, it

is soon obscured by the technicalities and conditional phrases. The emperor is not here

represented as omnipotent or omniscient, and it takes away from his authority by delegating it

to the bureaucracy. We take away mixed messages from Gratian in this regard.

On the one hand, some of the laws successfully show us his power and his ability to

make decisions, and on the other hand we get CTh 13.3.11 where the onus is on his subjects.

In a similar way it supports Rufinus' assertion over Gratian's lack of boldness in making any

real change in religious policy, preferring to follow his predecessors. Here Gratian evidently

was confused about what image he wanted to present to the world. For this, Ausonius is

partly to blame. The quaestor as facilitator was meant to help the emperor understand his

objective and translate that into a workable law. He was meant to use that law to

communicate an image of the emperor. Ausonius does not represent the impartiality of the

quaestor in CTh 13.3.11. Some level of self-interest is plain, and he probably advocated his

own side, which a facilitator is not meant to do. It is the only explanation for the failure of

this law to communicate anything of substance and for the confused, weak image of the

emperor that we derive from it.

Virius Nicomachus Flavianus

Virius Nicomachus Flavianus was just as influential a member of the senate as he was a

prominent pagan. Between AD388 and 390, 38 laws were drafted by Nichomachus under the

guidance of Theodosius, first from Milan, then Rome, and again from Milan.92 The laws

issued were not directed against pagans, rather they were against heretics.93 The emperor had

some years earlier issued constitutions in the eastern empire aimed at 'heretical' groups like

the Arians and Manichaeans. The crowning glory of this legislation was his Cunctos populos

in AD380 that directed the inhabitants of the empire to abandon their heresy and paganism

and take up the Catholic faith, specifically Nicene Christianity. The following text is an

extract:



27

Emperors Gratian, Valentinian, and Theodosius Augustuses: An Edict to the People of the City of Constantinople It is Our Will that all the people who are ruled by the administration of Our Clemency shall practise that religion which the divine Peter the Apostle transmitted to the Romans... We command that those persons who follow this rule shall embrace the name of Catholic Christians.94

Thus when Theodosius went to Rome in AD389 he was in part concerned with

restating the correct orthodoxy and asserting the deviance of heresy in the western empire.

This was done by taking away the legal privileges of these groups. Like his imperial

predecessors, Theodosius was a layman in religious matters and sometimes relied on the

advice of various princes of the church such as Ambrose, bishop of Milan. The emperor was

trying to eliminate heresy by taking away the heretics’ power base and breaking up their

congregations. The religious policies of earlier emperors was mixed. Constantine tried to

create a single official imperial church.95 He also proclaimed universal religious toleration.96

Julian the Apostate, on the other hand, proclaimed universal tolerance with a view towards

creating disunity.97 The emperors Valens and Valentinian I were largely pragmatic in their

policies towards the churches.98 The idea of what was effectively a forcible incentive to

convert to a Christian faith now supported by the state was new. While the ruling class of the

Arian church had experienced a blow in the eastern empire due to Theodosius' legislative

policies, it was still strong in much of the western empire and would continue to be so long

after our period. Theodosius needed someone with experience who did not subscribe to either

creed; the impartiality of the quaestor on display in the person of Nicomachus. There is little

doubt that Nicomachus was secretly delighted to take up this task but this does not detract

from his impartiality in practice. His role was to use his knowledge of the law and his

eloquence to draft constitutions that conveyed the emperor's desires. They were meant to be

understood to represent the power of the emperor and the state. There are three constitutions

that show this best.

The first one here from May 4 AD389 regards Eunomian eunuchs:

94 CTh 16.1.2: Quos clementiae nostrae regit temperamentum, in tali volumus religione versari, quam divinum Petrum apostolum tradidisse Romanis religio... hanc legem sequentes Christianorum catholicorum nomen iubemus amplecti.

95 Errington, Roman Imperial Policy from Julian to Theodosius, p. 6.

96 Dillon, The Justice of Constantine, p. 121.



28

Emperors Valentinian, Theodosius, and Arcadius Augustuses to Tatianus, Praetorian Prefect The Eunomian eunuchs shall not have the liberty either to make a testament or to take under a testament. It is Our will that this regulation shall be observed with respect to all whom the law may find still living and that no person shall be protected by the privilege of any past will... in short, the aforesaid persons shall have nothing in common with the rest of mankind.99

Rufinus tells us that the Eunomians believed in a more extreme version of Arianism in

that they denied Jesus Christ was of the same nature as God the Father (consubstantial) but

that he was, instead, of like nature (homoiousian).100 Socrates give us more detail: its founder

Eunomius initially followed the dogma of Arius but was barely capable of lucid discussion on

the Scripture or the character of the Holy Trinity and instead persisted in 'fallacies' in his

long-winded discourses on both.101 This was a biased view, but it shows the perspective of

'orthodox' Christians about particular 'heresies'. CTh 16.5.17 intended to dismantle the power

base of the Eunomian eunuchs through preventing anyone who subscribed to that creed from

benefiting from a will or making one. This meant presumably that Eunomians would have

lacked the funds to continue to spread their heresies through the construction of churches, for

instance. It cannot be emphasised enough that control over meeting places was important on a

practical and symbolic level.102

The language of this law is forceful and clear. If, of course, the recipients were

uncertain on any part of this law, the concluding sentence has no ambiguity: 'nihil ad

summum habeant commune cum reliquis'. These persons knew who they were. They are

specifically named in what Humfress accurately calls a 'taxonomic' way.103 Humfress also

suggests that this heresiological language allows the emperor to style himself as the protector

of the empire.104 Humfress is correct, but language in all the law codes, not just those

targeted against heretics, allowed the emperor to style himself as the empire's protector, so

99 CTh 16.5.17: Eunomiani spadones nec faciendi nec adipiscendi habeant licentiam testamenti. Quod circa omnes, quos vivos lex invenerit, volumus custodiri nec quemquam praeteritae cuiuspiam voluntatis privilegio defensari... nihil ad summum habeant commune cum reliquis.

100 Rufinus, 10.26.

101 Socrates, 4.6.

102 Caroline Humfress, Orthodoxy and the Courts in Late Antiquity (Oxford: Oxford University Press, 2007), p. 237.

103 Humfress, Orthodoxy and the Courts in Late Antiquity, p. 237.


29

long as it was written in a certain way. The Eunomians no longer held the same legal

privileges as Romans. The intention was to disenfranchise the Eunomians in order to

persuade them to convert to Nicene Christianity. This is a different method of persecution

from that used by the pagans against the Christians at the beginning of the century. Where the

Christians were forced to join in sacrifice while their churches were razed and their scriptures

burned, this persecution is much more insidious in its 'passivity'. Whether this worked in

practice is an entirely different question. The sources, when they do mention the Eunomians,

do not mention this legislation or their persecution, rather they focus on the 'heretical'

principles of the sect.

Here is a law regarding the Manichaeans from June 17 AD389: The same Augustuses [Valentinian, Theodosius, and Arcadius] to Albinus, Prefect of the City If any persons should disturb the world under the name Manichaeans, they shall indeed be expelled from the whole world, but especially from this City, under threat of judgment. Moreover, the wills of the aforesaid persons shall not have the force of testaments; further, the property itself shall be confiscated to the people, nor shall it be lawful that any property be left through them or to them. In short, they shall have nothing in common with the world.105

The Manichaeans derived their name from Mani, a man who claimed to be an apostle

of Jesus Christ.106 It was originally treated by the Tetrarchy as a political problem; an

incursion from the Sassanid Empire. Mani was said to have been in collusion with Shapur I

and intended to rally the Manichaeans in the Roman empire as a sort of fifth column.107

Gradually, and certainly by our period, Manichaeism lost many of its political associations

and came to be treated as a heretical sect of Christianity. The law above goes further than that

for the Eunomians. It threatens not only the abolition of the ability to make wills or to be a

beneficiary of a will but expulsion from Rome, where the law was given, and the whole

empire. The same type of heresiological language is used in the taxonomic naming of the

group and the last sentence seems to have become a signature of Nicomachus'.

105 CTh 16.5.18: Quicumque sub nomine Manichaeorum mundum sollicitant, ex omni quidem orbe terrarum, sed quam maxime de hac urbe pellantur sub interminatione iudicii. Voluntates autem eorundem, quin immo ipsae etiam facultates populo publicatae nec vim testamentorum teneant nec derelinqui per eos aut isdem fas sit. Nihil ad summum his sit commune cum mundo.

106 Peter Brown, 'The Diffusion of Manichaeism in the Roman Empire', Journal of Roman Studies, Vol. 59, No. 1/2 (1969), p. 93.

107 Brown, 'The Diffusion of Manichaeism in the Roman Empire', p. 93.

30

To take this law and that above as examples, Nicomachus seems to prefer absolutes

over qualifications. This law applies to all those who live under the name Manichaeans and

not, for instance, a specific group within the hierarchy of Manichaeism. It is very dissimilar

from those laws drafted under Eupraxius who thought differently and reflected the mind of an

emperor who wanted his subjects to have a certain image of him. However, the law may in

fact have been abused as Humfress tells us that accusations of heresy in property and

inheritance disputes were common.108 In this regard, the power of this law, and others, is to

some extent taken away from the emperor and given to the individual. The law specifically

states, 'Quicumque sub nomine Manichaeorum', which implies the individuals would have to

be named as such for the law to work. Without the cooperation of the public, the authorities

cannot have enforced the law in a world that they were detached from. The law thus invites

good orthodox Christians to name their neighbour as a Manichaean (preferably if he is such)

and so allow the authorities to effectively enact the law.

This final law from November 26 AD389 concerns heresy in general: The same Augustuses [Valentinian, Theodosius, and Arcadius] to Tatianus, Praetorian Prefect. If any persons retain the leadership of perverse dogma, that is bishops, priests, deacons, and lectors, and if any under the pretense of the clergy attempt to impose a blot upon religion, or if any are established under the name of any heresy or false doctrine whatsoever, they shall by all means be driven from their funereal meeting places, whether they appear to be within the City or in suburban districts.109

The first half of this law differs from the two previous laws in that it actually does refer

to a specific group to be persecuted, namely the church hierarchies of heretical sects. The

second half is a little more ambiguous but it does suggest that the common people would also

be persecuted through expulsion from their meeting places. Again, that sense of control over

meeting places comes through the text. The language of this law differs as well in that it was

much more zealous. The previous laws carried with them a certain sense of indifference.

They were forceful, but they were not as passionate as this one. These two sentence

constructions summarise the feeling best: 'scaevi dogmatis'; 'religione maculam'. The hard

consonants convey a sense of true violence and hatred that we get little of in the other laws.


109 CTh 16.5.19: Si qui scaevi dogmatis retinent principtatum, hoc est episcopi presbyteri diacones adque lectores et si qui clericatus velamine religione maculam conantur infligere, sub cuiuslibet haeresis sive erroris nomine constituti ex funestis conciliabulis, seu intra urbem seu in suburbanis esse videantur, omni modo propellantur.

31

Yet the general ambiguity of the law, particularly as to just who it is directed at besides the

various church hierarchies, suggests a failure of facilitation. The phrasing is confused. For

example, 'sub cuiuslibet haeresis sive erroris nomine constituti'. It is unclear as to whether it

is targeted towards congregations or the church hierarchy of any heresy. The law does not

attempt to issue restrictions that would hinder the legal privileges of whatever group it

targets. In that regard, it is unlike the previous laws. Besides the above phrase, it does

succeed in conveying its message. It is meant to be understood as hostile and to invoke fear in

the hearts of heretics through its imagery: They are to be driven away from their meeting-

places — 'omni modo propellantur'. There is less of a sense of patience and a willingness to

issue laws that are meant for the long-term. It is not so calculated as the others, and perhaps

this was the point. There were numerous heretical groups existing in the Empire, but in

failing to take a consistent approach, it means that there is more of an untrained, ineloquent

emperor coming through the text than there is of Nicomachus, the skilled rhetorician who so

successfully facilitated the thoughts and desires of his emperor in the previous laws.

Nicomachus has his own individual style discernible in the texts. For the most part they

show the eloquence expected of a quaestor, with the exception of the third law that does not.

Heretics were no longer equal to orthodox Christians. In continuing to practise their heresies,

they must be willing to forfeit such legal privileges as was the right of every Roman citizen.

They were, in point of fact, no longer Roman. This distinction between orthodoxy and heresy

is largely one of power.110 Such rhetoric is the trademark of the laws drafted under

Nicomachus' quaestorship and differs from other quaestors who either go for full legalese or

draw on the style of a poem. Making this into law was problematic for the lone emperor.

Some scholars argue that Theodosius ruled with an iron fist and merely paid lip-service to the

laws.111 Rather, the evidence is beginning to suggest that this was not the case at all.

Theodosius was not learned enough to craft laws on his own initiative, although he

sometimes could and did do so. Theodosius was just as dependent on Nicomachus as he was

on the latter's predecessors. Theodosius ruled at a time when the bureaucracy was fully

110 Karl Leo Noethlichs, 'Revolution from the top? Orthodoxy and the persecution of heretics in imperial legislation from Constantine to Justinian' in Clifford Ando and Jörg Rüpke, eds., Religion and Law in Classical and Christian Rome (Germany: Franz Steiner Verlag, 2006), p. 120.

111 A.H.M. Jones, The Later Roman Empire 284-602: A Social, Economic and Administrative Survey (Oxford: Basil Blackwell, 1964), p. 330; David A. Graves, Consistorium Domini: Imperial Councils of State in the Later Roman Empire (Ann Arbor: University Microfilms International, 1982), p. 100.

32

functioning in the way Diocletian had intended; the empire was beginning to run itself. The

emperor needed to assert his authority over the consistory that had just as much authority to

create laws. But he also recognised the virtues of the quaestor and made full use of him.

Theodosius recognised the impartiality of the quaestor — it was irrelevant whether he was a

rabid Christian like Maternus Cynegius or a pagan like Nicomachus. That was the key to

successful facilitation.

Much like Ausonius, Nicomachus does not always succeed in creating good, workable

laws. There is, for example in CTh 16.5.18 too much ambiguity as to its target audience. Is it

merely directed at the leaders of churches or are the people included? For the most part,

however, Nicomachus does get across the image of Theodosius as the autocrat but we also

get the sense that Theodosius was inviting his subjects to enforce his laws as good fellow

Christians. This is the remarkable thing about Nicomachus' quaestorship, that he could so

easily put aside his own beliefs in the pursuit of facilitating the ideas of an emperor who so

shortly afterwards began to persecute men like him en masse. This was Nicomachus' role as

quaestor. The quaestor was meant to be impartial in facilitating the law. Nicomachus was a

zealot against Christians which makes his situation much more significant than that of the

others quaestors, particularly because he was drafting laws that were aimed against them and

because he was wholly neutral in this. By and large, he created laws for Theodosius that

worked, and conveyed a consistent image of the emperor.

33

Chapter Two: The Quaestor as Mediator

Intervention

The quaestor was more than a lawyer-draftsman; he was also an adviser on the law to the

emperor. Eupraxius is the only quaestor the sources explicitly state acted in this role but it is

reasonable to suggest this was convention. Cassiodorus comes to our aid again in his formula

of appointment to the quaestorship where he writes as the king: 'In the preservation of equity,

I, who should still be obeyed, suffer myself to be contradicted'.112 It was suggested earlier

that Cassiodorus is possibly self-aggrandising to a certain extent, but that other, more public

documents, like the speech from Theoderic to the Senate, show the function of the quaestor

consistent with Cassiodorus' earlier formula. These were not private papers; they reflected the

official position of the government. Whether Cassiodorus or any quaestor of the sixth century

was free in practice to 'contradict' the king is uncertain, so too is the question as to how close

king and quaestor actually were. We have at least one other reservation to consider before

taking this wholeheartedly as fact. It was common for kings and emperors (and even

officials) to conspire in the sort of rhetoric that suggested equality. A letter from Theodoeric

to the Senate exhorts the patres conscripti that they owe the state an effort equal to his

own.113 We saw Eupraxius contradict Valentinian I in AD368 and it is not apparent anywhere

in the text that other officials had this power. Cassiodorus' emphasis on the quaestor's ability

to do this in the sixth century suggests it was always a privilege of the quaestor if Ammianus

also recognised it in the fourth century, but whether Cassiodorus is simply reflecting the

theoretical position of the quaestor from an earlier time is unclear, and there is no narrative

evidence which shows the quaestor activating this privilege in the sixth century. Zosimus

only once refers to the quaestorship and that is in a footnote regarding its origin.114 However,

we do see it used in the fourth century by Eupraxius , and if Cassiodorus is accurate, it points

towards the function existing throughout this period, even if it was not commonly used.

This was not some early symptom of 'democracy' within late Roman government. It

cannot be stressed enough that the emperor was an autocrat with greater power in some 112 Cass. Variae 6.5.5.


114 Zosimus, 5.32.6.

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respects than his predecessors who still held to the theory of primus inter pares. The quaestor

was there as a 'store-room of the laws' who had the ability to 'contradict' the emperor with

facts, not opinions. It was his superior knowledge of the law that allowed him to do so, but it

was still up to the emperor to make the final decision so the quaestor was not always

successful.

It was established that Valentinian is well-recorded in Ammianus as abusing the power

of his office. The common pattern is that Valentinian executed or tried to execute minor and

mid-level officials. It was a blatant physical attack against the bureaucracy. Eupraxius is

placed by Ammianus as the protagonist in these narratives where he 'intervenes' to curb the

excesses of autocratic power. Ammianus tells us that Valentinian deliberately lessened his

reputation for harshness through sheer mental will. The fault of his personality slowly

widened until without restraint it broke free.115 In AD367, he ordered the execution of

Diocles, the former comes sacrarum largitionum in Illyricum, as well as Diodorus, an agens

in rebus and three attendants of the vicarius of Italy. These were, according to Ammianus, for

minor, trivial offences.116 Ammianus thus provides us with a background to his main point:

that in the affair of a decurion called Maxentius of Pannonia, the emperor ruthlessly ordered

the execution of decurions of three towns.117 Eupraxius was present at the scene and is

recorded by Ammianus as having 'intervened' with these words: "Act more mercifully, most dutiful emperor, for these men whom you order to be put to death as criminals the Christian religion will honour as martyrs."118

The language is panegyrical. Eupraxius hearkens to traditional values and the ideal

image of any emperor. Mercy and duty (among others) are the terminology of the ruling

class. Eupraxius appeals to the emperor to be merciful, not because these men deserve to live,

but because in death, they would haunt Valentinian. The ancient sources, whether pagan or

Christian, celebrate Valentinian for his toleration and neutrality in religious matters.119 Laws

on religious matters tended to be local or disciplinary and occurred late in his reign. Valens,

115 Amm. Marc. 27.7.4.

116 Amm. Marc. 27.7.5.

117 Amm. Marc. 27.7.6.

118 Amm. Marc. 27.7.6.

119 Amm. Marc. 30.9.5; Sozomen, 6.7.1.; Socrates, 4.1.1.

35

in comparison, was aggressively minded towards religion. On one occasion, it is recorded

that he ordered the execution of some 80 clerics who had complained of the ill way they were

treated. Valens' prefect pretended to send them away into exile on board a ship, but the vessel

was set alight, and the ship crashed into a port named Decidizus. Famine arose in Phrygia

afterwards, which Socrates tells us, was probably a direct result of the 'impious deed'.120 In

any case, Valens seems to have been more careful thereafter. Socrates tells us that the

emperor later wished to visit a church dedicated to St. Thomas the Apostle while he was in

Edessa. It emerged that its congregation was favoured by heretics. The prefect privately

warned the congregation to not visit the following day but they did so regardless. Valens sent

his prefect and a body of troops ahead to expel the congregation in advance of the imperial

visit. The prefect came upon a poor woman leading her child through the ranks of soldiery.

Socrates continues: The prefect, irritated at this, ordered her to be brought to him and thus addressed her: 'Wretched woman! whither are you running in so disorderly a manner?' She replied, 'To the same place that others are hastening'. 'Have you not heard', said he, 'that the prefect is about to put to death all that shall be found there?' 'Yes', said the woman, 'and therefore I hasten that I may be found there'. 'And whither are you dragging that little child?' said the prefect: the woman answered, 'That he also may be vouchsafed the honour of martyrdom'.121

The prefect hurried back to Valens, informing him of the intended martyrdom, and so

Valens declined to slaughter the congregation or visit the church. This episode illustrates that

emperors had to be wary of public opinion. To give another example: when Theodosius

ordered a bishop to rebuild the synagogue in Callinicum, which rampant Christians had

destroyed, Ambrose wrote a letter to the emperor, suggesting the bishop may choose

martyrdom instead, and that civil disorder could follow.122 It was, after all, the threat of civil

disorder and violence that influenced an emperor's decisions most often. Eupraxius knew this,

and so his words are a careful balance between playing on the fears of the emperor in this

regard, but also appealing to his mercy and duty. It was not so much idle fear as based on

precedent. Only two years earlier in AD365, four officials were executed and later honoured

as martyrs at 'The Place of the Innocents'.123 This was one of the problems with autocratic

120 Socrates 4.17.1.

121 Socrates, 4.18.1.

122 Ambrose Ep. 74.7-8.

123 Amm. Marc. 27.7.5.

36

power, particularly in an increasingly Christian empire where the 'secular' state was in

competition with other authorities. Decisions made by the emperor influenced the citizen

body's view of him, and while martyrdom was not as common as it was in previous centuries,

it was still a dangerous tool. In the sixth century, Cassiodorus refers to the eloquence of the

quaestor that had the power to defer punishment.124 It was, in Cassiodorus' view, in the

interests of civilitas — 'social order'.125 This is an idea that went back to the principate. The

emperor needed the quaestor to 'correct' him when necessary, and so attempt to avoid a

'public relations' disaster. This was just as important in the sixth century as it was in the

fourth century.

Ammianus does not tell us whether the order was enacted or not. But it did have a more

immediate effect in that it encouraged others to 'challenge' the emperor. Ammianus tells us

that Florentius, the praefectus praetorio Galliarum, imitated Eupraxius' 'self-confidence' and

wittily questioned a similar order for the execution of three of those unhappy decurions in

each of a number of cities.126 The quaestor's behaviour in regards to the emperor could have

the effect of encouraging the bureaucracy to stand up to the emperor. They did not have the

same liberty to directly address the emperor, or to contradict him. Rather like Florentius, they

could use their wit and skill in rhetoric to make suggestions. A direct order from the emperor

was rarely ignored but it was possible through the careful use of rhetoric to suggest a

different course of action. Florentius' question best illustrates this: "What is to be done, then, if any town does not have so many decurions? To the rest this also should be added, that they shall be killed, when the town has them."127

Once more, there is no evidence that the act was carried out or that it was made into

law. The CTh is silent on the matter. Even if the proposal was accepted, the absurdity of the

final law suggests it is unlikely to have ever been enforced. If it was, it only demonstrates the

inherent issue with autocracy in a world where it relies on a bureaucracy to carry out its

single-minded orders. The bureaucracy had its own interests. The emperor could do little to

ensure its enforcement. Of course, decurions suffered frequently throughout this period. It

was an unpopular status, and knowledge of this law must have made citizens even more 124 Cass. Variae 6.5.3.


126 Amm. Marc. 27.7.7.

127 Amm. Marc. 27.7.7.

37

reluctant to serve as decurions. It was ultimately up to Florentius to enforce the law, whether

in this form or its original form as ordered by Valentinian, which only emphasises the gap

between what the emperor wanted and what the bureaucracy was willing to do.

Eupraxius did not betray the emperor in any sense. He used his recognised powers to

intervene and persuade the emperor to not execute those men and warned against making

martyrs. There was some self-interest in this regard. Eupraxius' position as quaestor depended

on Valentinian remaining emperor. A civil revolt posed little threat to the imperial power but

there were plenty of Christians of different sects in the army and in his administration. It

would be inconsistent with Valentinian's moderation in religious affairs to later be

responsible for the creation of new martyrs. This was a real threat in general and Eupraxius

was probably right to intervene on this occasion. Eupraxius was aware of public opinion and

sought to guard against a downswing in the emperor's popularity. This act also mediated the

relationship between the emperor and bureaucracy. Eupraxius' success gave a high official

like Florentius the confidence to do the same, albeit in a different way. Not all officials had

the same success. Valentinian II admonished Symmachus in AD385 for questioning the

selection of officials as the new praefectus urbis Romae: 'There must be no dispute

concerning an imperial judgment, for it is a kind of sacrilege to doubt whether the person

whom the Emperor has selected is worthy'.128 For a time at least, Eupraxius' original

intervention highlights how the quaestor could directly or indirectly mediate between the

emperor and bureaucracy.

These examples, few in number, albeit powerful, show the quaestor as a 'restraint'

against the more arbitrary nature of the emperor. It was established at the beginning of this

paper that the emperor in theory was the ultimate autocrat. This was never wholly true and

his wishes always depended on the willingness of others to carry them out. The quaestor, on

the other hand, was a revolution in this process. He was the only official fully recognised to

have the 'freedom of speech' to 'contradict' or 'correct' the emperor. Of course, it always

depended on the quaestor's actual skill in rhetoric. Some quaestors of the Codes who show no

talent for eloquence in the written text must equally have had no talent for persuasion in

person. Likewise, he had to be familiar with the law. We saw how Eupraxius corrected

Valentinian on the issue of a certain decree, which supports the quaestor's position as a 'store-

room of the laws'. Further, Eupraxius also successfully mediated between emperor and 128 CTh 1.6.9.

38

bureaucracy. Certainly, in one example, it was in defence of the Senate, but in the other it

gave a high official the confidence to 'question' the absurdity of a law without explicitly

doing so; it opened up a dialogue between the two parties. This did not work for everyone,

however, because it is knowledge of the law that allows an official to 'contradict' the emperor.

The overall effect was to protect the bureaucracy against the emperor but without the emperor

losing anything by it.

Policing the Empire

The quaestor was more than just the 'mouth-piece' of the emperor. When the quaestor was not

drafting laws by the emperor's side or advising him on points of law, he was out operating in

the provinces. His business was sometimes foreign, and related to negotiations with kings. It

was often, however, domestic. The quaestor was there to keep an eye on the proconsul's

activities and it was just one of many duties he undertook as the emperor's 'confidant'.129 It

was expected that the quaestor should travel, and Maternus Cynegius is well-known for his

penchant for doing so during his quaestorship.130 Cassiodorus' Variae tells us in a speech

given by Theoderic to the Roman Senate that the 'upright quaestor' foils the 'plans of

scoundrels'.131 There is no suggestion that the quaestor travelled in the sixth century but he

clearly acted in the capacity of the king's 'policeman' against bureaucratic corruption.

Ammianus provides us with several instances where the quaestor performs different roles

while away from the emperor's court. The intention here is to look at these examples and to

argue that through his operations in the provinces, whether it was negotiating with governors

or undermining the activities of potential usurpers, the quaestor was ultimately mediating the

power of the emperor throughout the empire, in a more practical way than the mere

facilitation of laws was doing. He was in direct contact with bureaucrats, and his skill in

rhetoric enabled communication and persuasion when decrees issued from the palace had

failed. But at the same time, he was always at risk of appearing too close to the emperor, and

this sometimes had consequences for anyone who wanted a career beyond the quaestorship.

It was remarked that the first quaestor to appear in the literature is from AD354.

Ammianus casually notes that while Gallus journeyed throughout the empire, Taurus had 129 Matthews, Western Aristocracies and Imperial Court, p.54.

130 Zosimus 4.37.


39

been sent to Armenia in his capacity as quaestor, and did not address or see Gallus although

he passed that same way.132 The PLRE records that Taurus was already important at the court

of Constantius II in AD345 as a comes.133 Our second quaestor, Leontius, was actually

appointed by Constantius as quaestor to Gallus.134 This was done under the pretext of

discussing matters of state. Ammianus confidentially tells us that in reality it was to ensure

Gallus did not make any moves towards secret enterprise.135 Ammianus cannot tell us the

motives of Constantius but he was a first-hand witness to many of these events.

The quaestor forms an important part of the imperial intelligence network. Constantius'

network in the east was renowned for its size, of which few had any true knowledge.136 Little

is known of Leontius' career before he was quaestor, but his subterfuge as quaestor to Gallus

shows he was trusted by Constantius. Taurus' prior importance at the imperial court suggests

his appointment as quaestor was not idly made either. He was known to Constantius for

almost a full decade, and for an emperor who was wary of conspiracy, both appointments

show the quaestorship was regarded as important in the intelligence network. Later, Leonas, a

significant figure at court in AD355 and comes in AD359, was selected as quaestor in AD360

to deliver a message to and negotiate with Julian.137 In one regard, this quaestor fulfils his

original function as the imperial spokesman in his delivery of the message, but the fact that

he negotiated with Julian gives him much greater agency than his predecessors. This is not an

isolated incident. Taurus must have had the same freedom with which to negotiate with

dignitaries in Armenia, and we already know Leontius, under the guise of quaestor to Gallus,

discussed state affairs. So much for Constantius. When battle was meant to come between

Julian and Constantius, Julian made Jovius his quaestor and sent him, along with part of his

army, to march into Italy, accompanied by Jovinus, magister equitum.138 Matthews, in an

132 Amm. Marc. 14.11.13-14.

133 PLRE I, Taurus 3.

134 PLRE I, Leontius 22.

135 Amm. Marc. 14.11.14.

136 Matthews, The Roman Empire of Ammianus, p. 35.

137 Amm. Marc. 20.9.4.

138 Amm. Marc. 21.8.1-3.

40

otherwise excellent work, fails to note the importance of Jovius in this little episode.139

Contrary to Matthews, it is said by Ammianus that Jovius took charge of the army, and Jones

is in agreement.140 The text is clear on this: 'He divided his army and sent one part with

Jovinus and Jovius'.141 Jovius was there in his capacity as quaestor. This is not to suggest he

took charge of any actual fighting but he was later sent with this same army group to lay

siege to Aquileia. We know this because Jovius announced the good news to Julian,142 which

suggests he was present at its surrender, and only returned to court with the intention of

giving the report.

The quaestor's capacity as an imperial spokesman was retained as an active part of his

duties but he was also given the liberty to negotiate with foreign and domestic powers.

Cassiodorus' view of the quaestor as merely the 'mouth-piece' of the emperor suggests a

passive role. Perhaps that was the case by the sixth century, but in the fourth century the

quaestor was much more active in this regard. His skill in rhetoric was an important part.

Brown aptly notes that the best provincial governors were those who were as capable of

persuasion as they were open to it.143 Conversation and negotiation between governor and

quaestor was that of equals who understood one another. Few in the bureaucracy were meant

to have matched the quaestor for rhetoric, and so he was an effective tool. But just as the

quaestor was sometimes ineffective in facilitating the emperor's laws, they were not always

successful when mediating between emperor and bureaucracy. The sources do not provide us

with any hint as to the eloquence of these quaestors, but we can readily infer from the CTh

that not all quaestors were equal, and their success in verbally communicating on behalf of

the emperor limited.

Finally, the quaestor was sometimes tasked with keeping an eye on the emperor's rivals

and the bureaucracy. This investigative nature expands into Valentinian's reign, not long into

which, he was struck with fever. The quaestor Viventius, in cooperation with Usatius, the

139 Matthews, The Roman Empire of Ammianus, p. 105.

140 PLRE I, Leonas 1.

141 Amm. Marc. 21.8.3.

142 Amm. Marc. 22.8.49.

143 Brown, Power and Persuasion in Late Antiquity, p. 33.

41

magister officiorum, was tasked with investigating the cause. 144 The friends of Julian were

accused of using magic to bring about the emperor’s fever.145 This is unusual and outside the

scope of the quaestor's normal duties, but it shows the trust inherent in the office of the

quaestorship which was recognised by the emperor. The quaestor had become indispensable.

That this was recognised by others, was problematic for him. He was meant to be the middle-

man between emperor and bureaucracy. A change in dynasty often threatened former

quaestors who were known to be sympathetic to the previous emperor, as it did with any

other high official. It was very much a role that was in the public eye.

The quaestorship was only ever a temporary position. It was a stepping-stone to better

things, like the praefectus praetorio. The promotions were a way for the emperor to have his

men in the bureaucracy. There is no record of quaestors becoming the emperor or attempting

to usurp the position. The quaestor had no influence apart from that which that emperor

endowed him. The quaestorship was not lightly given to anyone. The emperor was put into a

vulnerable position through his relationship with the quaestor. He had to be certain that his

quaestor was not ambitious in that regard.

The quaestor and the emperor were each one part of a secular 'dualitarian' system. The

emperor and the quaestor were of the same essence but still distinct from one another. The

laws of the emperor were those of the quaestor and the actions of the quaestor that of the

emperor. To assign individual responsibility to either party is futile. Late Roman provincial

bureaucrats must have often identified the quaestor as the emperor, even though the quaestor

only 'conveyed', 'facilitated' or 'mediated' the emperor's wishes. It did not pay to be too

closely aligned with one emperor in the event of a change in dynasty. The PLRE affords us

the opportunity to easily track quaestor's careers. For example, by AD374 Eupraxius was

praefectus urbis Romae and apparently well-known to his contemporaries as a supporter of

the dynasty of Valentinian. Not long after the emperor's death, neither he nor any of the

supporters of Valentinian remained in office.146 This is why the quaestor had to tread

carefully in his dealings with the bureaucracy. Jovius, Julian's quaestor, is last on record as

144 Amm. Marc. 26.4.4.

145 PLRE I, Viventius 1.

146 Matthews, Western Aristocracies and Imperial Court, pp. 62-65.

42

praefectus urbis Constantinopolitanae in AD364.147 Leonas' career simply peaked with the

quaestorship in AD360 and he disappears from the record thereafter.148 Others were a little

more fortunate. Taurus went on to become the praefectus praetorio Italiae et Africae from

AD355 to AD361, outlasting Constantius II, before being given a consulship in AD361,

presumably by Julian.149 His appointment as praefectus praetorio for six years was

considerable, and much longer than most. Viventius was praefectus urbis Romae in AD365-

67 and later became the praefectus praetorio Galliarum from AD368-71.150 The careers of

bureaucrats were created and destroyed by the emperors. We cannot know for certain

whether, for instance, Leonas simply retired after his quaestorship or if, as seems more likely,

Julian's arrival as emperor a year later ended it. The end of Eupraxius' career is telling,

however, and points to a pattern that may have been more common given this was a

tumultuous period with frequent dynastic changes.

The quaestor mediated the power of the emperor in the provinces, both in terms of

keeping an eye on bureaucrats and threats to imperial power, but also to ensure that the

wishes of the emperor were being enforced. He was an important agent within the

intelligence network, and the careers of men before their appointments as quaestor show their

selection was not idly thought about. From what we know, they were men who were already

important figures within the imperial court, and so the quaestor's status as the emperor's

'confidant' is not as unreasonable as it might seem. But because of this close alignment with

the emperor — this idea of 'dualitarianism' — their careers sometimes suffered with the

change of dynasty when it was obvious to contemporaries their sympathies lay with particular

emperors. This role of the quaestor connects well with his other duties as a mediator between

emperor and bureaucracy. They are all aspects of the same job, and they all point to the

quaestor as having a more important role than the scholarship gives him.

147 PLRE I, Jovius 2.

148 PLRE I, Leonas 1.

149 PLRE I, Taurus 3.

150 PLRE I, Viventius 1.

43

Conclusion We have seen the quaestor act in several different ways. Honoré and the scholarship are right

to emphasise style as an important element in drafting the law and, of course, the quaestor

made the greatest contribution in that regard. But ending the argument as to how great a

contribution the quaestor made or whether he dictated the content or style or both is the

limitation of the scholarship. This paper has argued that the quaestor was more important.

Chapter One showed how the quaestor facilitated imperial laws. Eupraxius, Ausonius,

and Virius Nicomachus Flavianus were three quaestors who facilitated the laws of three

emperors over as many decades. The quaestorship was the stepping-stone towards better

appointments. All three were eventually promoted to a praefectura praetorio, whether they

were members of the Senate, bureaucracy or neither. It was largely, however, a senior office.

Ausonius and Flavianus were both of advanced age when they were made quaestor. We do

not know the ages of either Maternus Cynegius or Eupraxius but the pattern of the other two

suggests they probably were more mature as well.

They are not isolated examples, but our list of quaestors for whom we have names and

biographies is short. It was often dependent on the skill of the quaestor in rhetoric in

facilitating the law. When the quaestor was successful, the emperor could style himself as a

peer of the Senate or an emperor who sought justice for wrongdoers but only if guilt was

absolutely proven. The quaestor had to carefully communicate the law through the avoidance

of technical legalese or simply poor sentence constructions. Laws were not just circulated

among the learned, they had to be understood by the emperor's subjects, whether they could

read them or not. Laws that focused too much on technical language were repeated, which

suggests they were too complex to be understood. In this regard, the quaestors were not

always successful. Two examples were given of laws by Ausonius and Nicomachus that

show where ambiguity and sentence structure often crafted not necessarily a bad law, but one

that was inconsistent in its representation of the emperor. Sometimes the emperor himself

was unable to communicate his desires adequately to the quaestor. The truth is we do not

always know why one law was written better and more effectively than another by the same

quaestor.

Much as the scholarship has overlooked the role of the quaestor as a 'facilitator', it has

also overlooked the quaestor as a 'mediator'. There were two aspects to this role: he mediated

44

between emperor and bureaucracy at court, and restrained the emperor when he could, and in

doing so sometimes saved the lives of bureaucrats by 'managing' the more tempestuous

whims of the emperor.

Secondly, the quaestor was a travelling representative of the emperor who was on the

lookout for misbehaving bureaucrats and threats to imperial power. He was used particularly

during the tumultuous period when Julian and Constantius II vied with each other for power.

We see the quaestor not only negotiating but almost acting as an intelligence agent. There is a

certain degree of duplicity in this but his role was more open-ended. Jovius is said to have

assisted in leading part of Julian's army into Italy, an important point that the scholarship has

ignored. He even investigated potential instigators of Valentinian I's illness. This was a role

that shows the quaestor as the emperor's 'confidant' once more.

Cassiodorus provides us with information on the role of the quaestor in the sixth

century and so too does Procopius. There are clear similarities between the quaestor of the

fourth century and his contemporaries in the sixth century. It is apparent that rhetoric was still

important as well as some knowledge of the law. In both periods the quaestor was the 'mouth-

piece' of the king or emperor, and he had the ability to 'correct' his master. There are

limitations, however, in that Cassiodorus spoke only for the Ostrogothic Kingdom at a very

specific point in time. His master, Theoderic, deliberately looked back to the Rome of old as

a model of government and society. The quaestorship's opposite in the East already seems to

differ slightly in its expectation of a high degree of experience and legal skill, neither of

which Cassiodorus, at the tender age of 22, could have had. Nevertheless, Cassiodorus is an

important source whose information on the quaestorship is relevant to the fourth century.

In conclusion, this study has significantly reinterpreted the quaestorship of Late

Antiquity. The examination of the laws from the Codex Theodosianus showed the difference

between laws that worked and laws that did not work, but more importantly it showed how

the emperor represented himself through the law in a way that is often unlike his appearance

in the literature. The quaestor was also the conduit between an autocratic emperor and an

emerging bureaucracy. It was a position fraught with danger and only the most skilful

survived with their careers intact. Much remains to be done, not least of which is a proper

survey of the quaestorship in the fifth and sixth centuries to bridge the gap. The scholarship

must have due credit for the attention it has already given to the quaestorship but it needs to

45

look elsewhere and it needs to reinterpret the evidence again and to look more closely at these

important aspects of the quaestorship.

46

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Oiling the Wheels of Justice The Role of the Quaestor in Late Roman Law

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